Citation Nr: 1229361
Decision Date: 08/27/12 Archive Date: 09/05/12
DOCKET NO. 10-09 223 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon
THE ISSUES
1. Entitlement to a permanent and total evaluation prior to the assigned date of August 23, 2007, to include the issue of whether a total disability rating based on individual unemployability (TDIU) was warranted prior to that date.
2. Entitlement to an effective date prior to August 23, 2007 for the grant of Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Barone, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from August 1947 to September 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO).
The Board observes that the RO has characterized the rating issue on appeal, as presented in the February 2010 statement of the case, as "entitlement to a permanent and total evaluation prior to the assigned date of August 23, 2007." The RO adjudication of this matter appears to have focused upon the Veteran's contentions of entitlement to an earlier effective date for a total rating under 38 C.F.R. §§ 3.340 and 3.341, and defined this issue as distinct from the separately adjudicated matter of the Veteran's claim of entitlement to an earlier effective date for a total rating on the basis of entitlement to a TDIU under 38 C.F.R. § 4.16. The RO adjudication of this appeal, including the February 2010 statement of the case, cites and applies 38 C.F.R. §§ 3.340 and 3.341 in response to the Veteran's contentions. The claim of entitlement to service connection for TDIU (discussed in a February 2010 internal RO memorandum) was deemed separate from this appeal and adjudicated in an August 2010 rating decision; this separately adjudicated TDIU decision involved the RO's only apparent application of 38 C.F.R. § 4.16 to consideration of the Veteran's contentions that a total disability rating is warranted prior to August 23, 2007. The August 2010 RO rating decision explained that "this decision ... addresses whether you are entitled to [a TDIU] at anytime between November 29, 2002 and August 23, 2007."
In a February 2010 internal memorandum, the RO explained that the Veteran's December 2009 contention of entitlement to an earlier effective date for a total rating on the basis of earlier entitlement to TDIU prompted the RO to recognize a prior inferred claim for TDIU. The RO determined that an inferred TDIU claim had been pending since a December 2007 rating decision found clear and unmistakable error (CUE) in a March 2004 rating decision; the CUE finding resulted in a revised disability rating assigned effective from November 29, 2002. The RO cited the facts that the revised rating caused the Veteran to meet the schedular criteria of 38 C.F.R. § 4.16(a) for a TDIU as of November 29, 2002, and that there was some evidence indicating that he was retired due to medical reasons and possibly unemployable as of that time. In an August 2010 rating decision, the RO adjudicated the individual unemployability contentions separately from this appeal and denied entitlement to a TDIU for the period prior to August 23, 2007. The Veteran did not separately appeal the August 2010 denial of a TDIU, and it appears that the RO considers that issue to be outside the scope of this current appeal.
However, the Board finds that both versions of the Veteran's contentions seeking an earlier effective date for a total rating are currently in appellate status. The Board finds that any contentions seeking assignment of an earlier effective date on the basis of individual unemployability must be considered to be included, part and parcel, within the instant appeal for assignment of a total rating from an earlier effective date. The Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for service-connected disability or disabilities, and therefore is part and parcel of a claim for increased compensation. In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that once a claimant: (1) submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a). But there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).
In this appeal, the Veteran is seeking assignment of a total disability rating for an earlier period and has submitted evidence of unemployability. The Board finds that the TDIU claim characterized by the RO as a separate claim is actually part and parcel of the rating issue on appeal. Hence, the Board has re-characterized the issue (as reflected on the front page of this decision) accordingly to reflect the correct complete nature of the claim in appellate status.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Veteran is currently assigned a total disability rating effective from August 23, 2007. The Veteran essentially seeks to establish such entitlement from an effective date prior to August 23, 2007, to include with consideration of the possibility that he may have been entitled to a TDIU during the period prior to August 23, 2007. The Veteran also seeks assignment of an effective date prior to August 23, 2007 for the grant of DEA benefits; this issue is presented essentially on the basis that the criteria for the DEA benefits may be met for the period prior to August 23, 2007 if the Veteran succeeds in establishing a permanent and total disability rating for the period prior to August 23, 2007.
The significant date of August 23, 2007 is the date of the filing of the claim that led to this appeal. That claim also resulted in rating decisions granting service connection and revising ratings for certain disabilities effective from that date of filing. However, the adjudication of the August 2007 claim leading to this appeal also resulted in the RO finding CUE in a prior rating decision and revising the Veteran's assigned disability rating for prostate cancer effective from November 29, 2002. Thus, this appeal may result in revision of ratings prior to August 23, 2007 if the record shows that a rating in excess of 60 percent was warranted for service-connected prostate cancer prior to August 23, 2007; the RO's December 2007 finding of CUE in the original assignment of the prostate cancer rating was part of the decision the Veteran has appealed in seeking an earlier effective date for a total rating, hence this appeal includes review of that prostate cancer rating dating back to November 29, 2002.
Additionally, this appeal may result in the assignment of a total disability rating for service connected compensation prior to the effective date of August 23, 2007, if the record shows that the Veteran met the criteria for a total disability rating under certain applicable regulatory provisions prior to August 23, 2007. As discussed above, the RO has recognized that consideration of entitlement to a total disability rating (including on the basis of individual unemployability) is pending for the period beginning with the November 29, 2002 effective date of the revised prostate cancer rating.
This appeal raises the need to determine whether the criteria for a TDIU were met prior to August 23, 2007. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining or maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, and 4.16. If there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.
The Board briefly observes that consideration of the Veteran's disability ratings currently assigned for the pertinent period prior to August 23, 2007, yields a combined disability rating of 80 percent with prostate cancer alone have a rating of 60 percent throughout the period. Therefore, the 38 C.F.R. § 4.16(a) schedular rating criteria for TDIU are met for the period in question.
What remains to be determined is whether or not the Veteran's eight service connected disabilities, considered singly and jointly, were of such nature and severity as to preclude him from engaging in substantially gainful employment consistent with his educational and occupational background. As acknowledged by the RO's February 2010 internal memorandum and August 2010 rating decision, the evidence of record at the time of the March 2004 RO rating decision indicated that the Veteran was medically retired at that time following diagnosis of prostate cancer. However, the evidence also indicates that the Veteran had potentially significant non-service-connected disabilities during this period. There is insufficient evidence to permit an adequately informed determination as to whether the Veteran's service-connected disabilities, considered alone, were of sufficient severity to medically render the Veteran unemployable during the pertinent period of time. Although VA medical opinions addressing the period after August 2007 indicate that the Veteran's broader set of service-connected disabilities render him unemployable in the most recent period, there has been no VA medical examination or medical opinion which specifically addresses the impact of the Veteran's service-connected disabilities (a narrower set of disabilities for the period prior to August 2007) in combination on employability during the earlier period in controversy in this appeal. Such a medical opinion is necessary to properly address the TDIU issue for that period.
Proper appellate review in this case requires adequately informed findings as to whether the Veteran's service-connected disabilities rendered him unemployable during the pertinent period. "'It is the Board's task to make findings based on evidence of record - not to supply missing facts.... BVA may not reject that claim [for a TDIU] without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal." Friscia v. Brown, 7 Vet. App. 294, 297 (1994). There is currently no medical opinion of record, nor other adequate evidence, addressing the pertinent question of the aggregate impact of the Veteran's service-connected disabilities upon his employability during the relevant period of time. The Board believes that the record needs to be further developed to more adequately address the Veteran's employability during the period in question, including an adequate assessment of the impact of the disabilities that were service-connected during that period upon his employability.
The Veteran's claim seeking assignment of an effective date prior to August 23, 2007 for the grant of DEA benefits is inextricably intertwined with the matter being remanded for additional development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Thus, appellate review of the DEA effective date issue must be deferred pending completion of the development directed below.
Finally, the Board briefly observes that the Veteran indicated in a November 2002 statement that he received Social Security Administration (SSA) disability benefits awarded in 1987. The Board notes that records associated with a 1987 disability determination would not be pertinent to the matter currently on appeal concerning the severity of the Veteran's service-connected disabilities for the period from November 29, 2002 through August 23, 2007. Hence, the Board finds no need to obtain any such records in the possession of the SSA under the specific circumstances of this case.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.)
1. The RO should take appropriate action to ensure that the Veteran is provided with appropriate notice regarding how the RO establishes the effective date for a permanent and total disability rating, and how the RO establishes the effective date for basic eligibility to DEA benefits. The RO should take any appropriate steps to ensure that the Veteran has been notified of the information and evidence not of record (1) that is necessary to establish entitlement to an effective date prior to August 23, 2007, for the assignment of a permanent and total disability rating for the Veteran's service-connected disabilities; (2) that is necessary to establish entitlement to an effective date prior to August 23, 2007 for basic eligibility to DEA; (3) that VA will seek to obtain; and (4) that the Veteran is expected to provide.
2. The RO should ask the Veteran to identify the provider(s) of any (and all) treatment or evaluation he received during the period from November 29, 2002 to August 23, 2007 for (a) prostate cancer; (b) bilateral orchiectomy associated with prostate cancer; (c) bilateral tinnitus; (d) post-operative anal fistula with pruritis; (e) hemorrhoids; (f) post-operative left inguinal hernia; (g) post-operative fibroadenoma scar, left chest; and (h) bilateral hearing loss. He should also be asked to provide all releases necessary for VA to secure any private records of such treatment or evaluation that are not yet associated with the claims file.
The RO must secure for association with the claims file the complete clinical records (which are not already associated with the claims file) of the treatment from all sources identified. If any records requested are unavailable, the reason for their unavailability must be explained for the record.
3. After the record is determined to be complete, the RO should obtain a medical opinion by an appropriate physician as to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities during the period from November 29, 2002 through August 23, 2007. The opining physician should consider and discuss the effect of all of the disabilities for which service-connection has been granted with an effective date prior to August 23, 2007, specifically: (a) prostate cancer with anemia, status post radical prostatectomy, bladder removal, and urinary tract reconstruction; (b) bilateral orchiectomy associated with prostate cancer; (c) bilateral tinnitus; (d) post-operative anal fistula with pruritis; (e) hemorrhoids; (f) post-operative left inguinal hernia; and (g) post-operative fibroadenoma scar, left chest; and (h) bilateral hearing loss.
The opinion should explain whether the pertinent service-connected disabilities during the period from November 29, 2002 through August 23, 2007, considered both singly and jointly, impacted the Veteran's employability such that the Veteran was incapable of any form of gainful employment consistent with his education and occupational experience. The opinion provider should explain whether these service-connected disabilities, without consideration of his age or his non-service-connected disabilities during the period, rendered the Veteran unable to secure or follow a substantially gainful occupation at any point during the period from November 29, 2002 through August 23, 2007.
Any finding that the Veteran was unemployable for a portion of the period in question should be accompanied by a specific identification of when the Veteran was rendered unemployable.
If in the physician's opinion an examination and/or interview of the Veteran is necessary for the medical assessment sought, such examination and/or interview should be conducted.
The opinion provider must explain a rationale for all opinions, and identify the information and evidence relied upon.
4. When the development requested above is completed, the RO should review the record and consider all the additional evidence, arrange for any further development deemed indicated, and then readjudicate the issues on appeal (to include the matter of entitlement to an earlier effective date for a total rating on the basis of individual unemployability). If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded opportunity to respond. This claim should then be returned to the Board as warranted.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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M. C. Graham
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).